State v. Hernandez, COA23-832, ___ N.C. App. ___ (Apr. 2, 2024)

In this Dare County case, defendant appealed his convictions for statutory rape, statutory sex offense, indecent liberties, and kidnapping, arguing (1) plain error in denying his motion to suppress evidence, (2) ineffective assistance of counsel for failing to object to the introduction of that evidence, and (3) double jeopardy for entering judgment on first-degree kidnapping and the underlying sexual offense charges. The Court of Appeals found no merit in (1)-(2), but vacated and remanded for resentencing regarding (3). 

In July of 2020, a law enforcement officer obtained a search warrant for defendant’s address after a thirteen-year-old girl reported that defendant took her from her parents’ home and raped her. After searching defendant’s home and seizing several digital storage devices, the officer obtained a second warrant in August of 2020 to access the contents of the devices. When reviewing the contents of the devices, the officer found videos of defendant engaging in sexual acts with two other minor girls. Defendant was subsequently indicted for offenses involving all three minor girls. Before trial, defendant moved to suppress the digital evidence, arguing seizure of the digital devices under the July warrant was overbroad, and the contents reviewed under the August warrant were fruit of the poisonous tree and not related to the crime being investigated. When the matter came to trial, the trial court eventually denied the motion to suppress, and defendant was convicted of all eight counts against him. 

Regarding (1), defendant argued that the affidavits supporting the search warrants “failed to allege any nexus between the items sought and the crime being investigated.” Slip Op. at 10. The Court of Appeals explored the applicable precedent on conclusory affidavits, determining that “[d]espite its failure to establish an explicit connection between [the officer’s] training and experience and his belief in the existence of probable cause,” the July affidavit was not conclusory and permitted the magistrate to reasonably find probable cause for the search. Id. at 23. Moving to the August affidavit, the court reached the same conclusion, and noted that the August affidavit contained an additional attestation regarding the officer’s training and experience related to sex crimes. 

Dismissing (2), the court explained that it had already established the adequacy of the affidavits and probable cause supporting the search warrants, and “[h]ad Defendant’s trial counsel objected to the introduction of the challenged evidence, the result of the proceeding would have been the same.” Id. at 28.  

Arriving at (3), the court explained that “the trial court’s instructions here were such that Defendant could only have been convicted of first-degree kidnapping on the basis of one of the sexual offense charges for which he was also convicted and sentenced.” Id. at 31. Imposing sentences for the underlying sexual offense charges and the first-degree kidnapping charge represented double jeopardy, requiring remand to the trial court for resentencing to second-degree kidnapping or arresting judgment on the underlying sexual offense charges.